Land – Public access – Parking – Local authority issuing claimant with penalty charge notice for parking car on land outside house – Adjudicator dismissing appeal – Claimant applying for judicial review – Whether privately-owned pavement being road to which “public has access” precluding landowner parking there – Application granted
The claimant and her husband owned 1, College Road, Dulwich Village, London. The front of the house, facing the road, had a strip of land between the house and a hedge. In the middle of the hedge was a gate with access to the front door. The land outside the hedge, between it and the road (the middle strip) and land adjacent to the hedge and the gate (the hedge strip) was owned by the claimant and formed part of her registered title (the relevant land).
The interested party local authority issued a penalty charge notice (PCN) when the claimant parked her car on the hedge strip. She challenged the notice on the basis that the vehicle was parked on her own land.
Section 104 of the Road Traffic Regulations Act 1967 defined “road” as “any highway and any other road to which the public has access…”. The definition had two limbs: the “highway limb” and the “public access road limb”. An adjudicator refused the appeal and upheld the PCN on the basis that the relevant land satisfied both limbs. A review adjudicator upheld the PCN. He determined that the highway limb under section 104 had not been established but it had been established by deemed dedication pursuant to section 31 of the Highways Act 1980 after public use for 20 years.
The claimant applied for judicial review seeking to quash the review adjudicator’s decision and substitute a decision directing the cancellation of the PCN. Neither the defendant adjudicators nor the interested party appeared or were represented.
Held: The application was granted.
(1) A question arose whether the review adjudicator acted lawfully (in a public law sense) in upholding the highway limb on the alternative basis of deemed dedication under section 31 of the 1980 Act. The interested party had to satisfy the court, on the balance of probabilities, that at the material time the relevant land was a highway. In order for the highway limb to be upheld on that basis, the interested party had to discharge the burden of showing, by reference to evidence, that a way over the land had actually been enjoyed by the public as of right and without interruption for a full period of 20 years. The review adjudicator’s determination upholding the highway limb could not stand because the interested party was not advancing such a claim, still less one which had marshalled evidence capable of supporting such a conclusion.
(2) In any event, the review adjudicator’s determination upholding the highway limb could not stand because there had been a material error of law. The review adjudicator accepted that the frequent (but not continuous) presence of a parked vehicle on part of the relevant land could in principle constitute a relevant interruption of the use by the public for the purposes of assessing the position under section 31. Adopting that approach, the adjudicator had found the highway limb to be satisfied: whenever a car was parked on the pavement, a pedestrian would have been able to avoid the obstruction which it presented by deviating and walking along the pavement around the car. However, it was a material error of law to allow fluctuation in the course of passage across land to constitute the maintenance of a course of passage, so as to support a conclusion of uninterrupted enjoyment by the public of a “way” over land. Greater precision was needed, identifying the uninterrupted way and analysing whether the location in question fell within that uninterrupted way. The review adjudicator’s conclusion was erroneous and unsustainable in law: AG ex rel Yorkshire Derwent Trust Ltd v Brotherton [1992] 1 AC 425; [1991] EGCS 120 and R (Dunmill) v Director of Public Prosecutions [2004] EWHC 1700 (Admin) considered.
(3) The review adjudicator had not addressed the public access road limb. Accordingly, the case should be remitted to determine that issue unless the claimant satisfied the court that resolution in her favour was the only conclusion to which the adjudicator could lawfully have come had the point been grappled with: section 31(5A) of the Senior Courts Act 1981 and CPR rule 54.19(2)(b).
There were twin preconditions to the public access road limb: (i) factual public access and (ii) legal public access. In the present case, the requisite factual public access was defeated by the actions of the landowner in regularly impeding that access and doing so on the relevant occasion. No other decision would have been lawfully open to the review adjudicator on the evidence and his findings of fact. Adopting a common sense approach, by reference to the landowner’s conduct and the review adjudicator’s findings of fact, the pattern of parking for significant periods of some 200 days every year, over an extended period, negatived the conclusion that, in general, the location at which the claimant parked her cars on her own land alongside the hedge in front of her own house was one to which the public had factual access: Bryant v Marx [1932] All ER Rep 518, Harrison v Hill 1932 JC 13 and Clarke v Kato [1998] 1 WLR 1647; [1998] PLSCS 270 considered.
(4) (obiter) The requisite legal public access was defeated, insofar as the public was permitted access under an implied licence, since such licence was inoperative on the relevant occasion. The use of the land by the claimant and her husband for parking their cars excluded the public from access to that part of the land where a car was parked. It followed that it would not be a place which at that time could satisfy the requirement of lawful public access to a road. This was not a case of mere passive acquiescence or inaction on the part of the claimant. The act of parking a car on the hedge strip was a physical barrier and a physical exclusion from that part of the land: R (Beresford) v Sunderland City Council [2003] UKHL 60 [2004] 1 EGLR 94 and R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2019] UKSC 58 [2019] EGLR 4 considered.
George Laurence QC and Simon Adamyk (instructed by Myers Fletcher & Gordon) appeared for the claimant; The defendant and the interested party did not appear and were not represented.
Eileen O’Grady, barrister
